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2010 DIGILAW 441 (GAU)

Pradip Kumar Sarmah v. State of Assam

2010-06-17

AMITAVA ROY, B.D.AGARWAL

body2010
JUDGMENT B.D. AGARWAL, J 1. The writ Petitioner, a judicial officer, is challenging his removal from Assam Judicial Service vide impugned order dated 11.10.2001, in the back-drop of the following observations given by the hon'ble Supreme Court in the case of Madan Mohan Choudhary v. State of Bihar and Ors. (1999) 3 SCC 396 2. The recommendation of the High Court on the basis of which the Appellant, who held the rank of Additional District and Sessions Judge, was compulsorily retired from service, exhibits the tragic fact that the highest judicial body of the State which abhors anything done contrary to the rule of law or done in a whimsical manner or arbitrarily, can itself act in that manner on the administrative side. Still, the plea that High Court Judges suffer from a "split personality" cannot be accepted for the pleasant fact that though on the administrative side, they might have had acted as ordinary bureaucrats, once they don the robes, they forget all their previous associations and connections. The transformation is so complete and real that even though they themselves were part of the decision-making process, they quash their own administrative decisions in exercise of their power of judicial review and, thus, maintain the majesty and independence of the Indian judiciary in which the people have always reposed tremendous faith.... 2. We have heard Shri A.K. Bhattacharyya, learned senior counsel for the writ Petitioner and Shri S.S. Dey, learned standing counsel for the Gauhati High Court. Though State of Assam (Respondent Nos. 1 and 2) have filed their affidavit but none appeared to advance their oral argument to substantiate the impugned removal order dated 11.1.2002 as well as the impugned order of the appellate authority dated 17.6.2004, dismissing the appeal. We have also perused the averments made in the writ petition and the affidavits of the Respondents as well as the documents appended therewith. We have also scanned the records of the disciplinary proceeding. 3. Before embarking on the issues raised in the writ petition, it would be just and apposite to give a gist of the facts leading to initiation of domestic enquiry and culminating in the removal of the writ Petitioner from service. 3.1 At the relevant time the Petitioner was serving as Munsiff-cum-Judicial Magistrate, First Class, at Sarupathar in the District of Golaghat (Assam). 3.1 At the relevant time the Petitioner was serving as Munsiff-cum-Judicial Magistrate, First Class, at Sarupathar in the District of Golaghat (Assam). Title Suit No. 12 of 1996 was in the file of the Petitioner. On 11.6.1999, a written complaint was received by the High Court form one Siblal Sarmah (son of Smt. Pabitra Sarma), Defendant in the said suit, alleging that the Petitioner had solicited a sum of Rs. 5,000 in order to render the judgment in their favour and accordingly the said payment was made and despite that the decree was passed in favour of the Plaintiff. As could be gathered from the record, the gratification amount was paid on 19.3.1999 and the judgment was passed on 6.5.1999. Having felt cheated, the complainant went to the office of the Petitioner on 10.5.1999 and demanded back Rs. 5,000, allegedly paid to him. However, instead of refunding the money the officer lodged an FIR under Sections 448, 353 and 506 of the IPC, being Sarupathar P.S. Case No. 30 of 1990 and the complainant was taken into custody. On the next day, i.e., on 11.5.1999, the complainant was produced before the writ Petitioner, who remanded him to judicial custody. After his release from the judicial custody, the complaint was submitted to the High Court on 11.6.1999. 3.2 On receipt of the complaint the High Court thought it proper to make a preliminary enquiry through the District Judge, to ascertain whether there was any substance in the allegations. Accordingly, the District Judge, Golaghat recorded the statements of the complainant, his mother and brother, Sheristadar and one peon of the office of the Judicial Officer and two more persons. After collecting the evidence the report was submitted by the District Judge to the High Court vide his letter dated 19.8.1999. In the said report, the District Judge had just recorded the evidence, collected by him, without recording any finding. 3.3 After going through the preliminary enquiry report, the High Court decided to hold a regular disciplinary proceeding, and accordingly the District Judge of Jorhat was appointed as the Enquiry Officer and the additional Chief Judicial Magistrate of Golaghat was appointed as the Presenting Officer. The enquiry was held on the following charges: 1. That while working as a Civil Judge (Junior Division)-cum-Judicial Magistrate, 1st Class, Sarupathar, you, on 19.3.99, took Rs. The enquiry was held on the following charges: 1. That while working as a Civil Judge (Junior Division)-cum-Judicial Magistrate, 1st Class, Sarupathar, you, on 19.3.99, took Rs. 5,000, at your residence, at Golaghat Housing Colony, from one Sri Siblal Sharma and his brother, Sri Bhumi Sankar Sarma, sons of Late Kasinath Sarma, of village Naojan, P.S. Sarupathar, for decreeing Title Suit No. 112/1996 of your court in favour of their mother, Smt. Pabitra Sarma. The above acts of yours amounted to failure, on your part, to maintain devotion to duty and absolute integrity. Further, the said acts of yours were unbecoming of a Judicial. Officer and amounted to misconduct on your part. 2. That while you were working as Civil Judge (Junior Division)-cum-judicial Magistrate, 1st Class. Sarupatbar, Sri Siblal Sarma aforementioned was produced under arrest by the police before you, on 11.5.1999, in connection with Sarupathar Police Station Case No. 30/1999 under Section448/353/506, IPC, which had been registered on the basis of an FIR lodged by you and you remanded the said accused to Jail hajat ignoring the fact that since you bad yourself lodged the said FIR; you were an interested person in the matter of prosecuting of the accused abovementioned. The above acts of yours amounted to failure, on your part, to maintain devotion to duty and absolute integrity. Further, the said acts of yours were unbecoming of a judicial officer and amounted to misconduct on your part. 3. That on 12.7.1999, while you were working as Civil Judge (Junior Division)-cum-judicial Magistrate, 1st Class, Sarupathar and i/c, Sub-Divisional Judicial Magistrate, Sarupathar, you passed an order transferring the G.R. Case No. 45/1999 (Corresponding to Sarupathar P.S. Case No. 30/1999 aforementioned) to your own court for trial ignoring the fact that since you had yourself lodged the FIR in the said case against accused Siblal Sarma aforementioned, you were an interested person in the matter of prosecution of the accused Siblal Sarma against whom charge sheet had been filed by police in the case aforementioned. The above acts of your amounted to failure, on your part, to maintain devotion to duty and absolute integrity. Further, the said acts of yours were unbecoming of a judicial officer and amounted to misconduct on your part. 4. The above acts of your amounted to failure, on your part, to maintain devotion to duty and absolute integrity. Further, the said acts of yours were unbecoming of a judicial officer and amounted to misconduct on your part. 4. That on or about 22nd/23rd May, 1999, while you were working as Civil Judge (Junior Division)-cum-Judicial Magistrate, 1st Class, Sarupathar, accused Siblal Sarma aforementioned came to Sarupathar court to obtain certified copy of your judgment in T.S. No. 12/1996, you put pressure on him to withdraw the complaint lodged by him against you before the hon'ble High Court and gave him assurance that if he withdraw the said complaint, you too would withdraw Sarupathar P.S. case No. 30/1999 aforementioned, which had been registered against accused Siblal on the FIR lodge by you, and you also promised to return the money taken by you from him (accused Siblal Sarma). Further, you also engaged bus driver, Sri Gobin Mahanta, to meet accused Siblal Sarma and persuade him to make a settlement between you, on the one hand, and accused Siblal Sarma and his family on the other hand. The above acts of your amounted to failure, on your part, to maintain devotion to duty and absolute integrity. Further, the said acts of yours were unbecoming of a judicial officer and amounted to misconduct on your part. 3.4 After a detail enquiry, the District Judge submitted its report to the High Court on 17.1.2001. The Enquiry Officer found that charges No. 1, 2 and 3 and 1st part of charge No. 4 were established. However, in the opinion of the Enquiry Officer, the 2nd part of charge No. 4 could not be established and proved. 4. The final enquiry report was placed before the Administrative Committee as well as before the Full court of the High Court and as per its resolution, the delinquent/writ Petitioner was removed from service by the Government vide impugned order dated 11.1.2002. The statutory appeal was also dismissed by the Government, vide order dated 17.6.2004. Hence, the aforesaid orders are under challenge before this Court. 5. The disciplinary proceeding was conducted as per the provisions of the Assam Services (Discipline and Appeal) Rules, 1964 ('Disciplinary Rules'). Since the writ petition revolves around non-adherence of Rule 9(5) and (6) of the Disciplinary Rules, we deem it proper to reproduce the aforesaid provisions for ready reference: 9. Procedure for imposing penalties. 5. The disciplinary proceeding was conducted as per the provisions of the Assam Services (Discipline and Appeal) Rules, 1964 ('Disciplinary Rules'). Since the writ petition revolves around non-adherence of Rule 9(5) and (6) of the Disciplinary Rules, we deem it proper to reproduce the aforesaid provisions for ready reference: 9. Procedure for imposing penalties. (1) *** (2) *** (3)*** (4) *** (5) The Disciplinary Authority may nominate any person to present the case in support of the charges before the Authority inquiring into the charges ('the Inquiring Authority'). The Government servant may present his case with the assistance of any other Government servant approved by the Disciplinary Authority, but may not engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority as aforesaid is a legal practitioner or unless the Disciplinary Authority, having regard to the circumstances of the case so permits. (6) The Inquiring Authority shall, in the course of the inquiry consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. The Government servant shall be entitled to cross-examine witnesses examined in support of the charges and to give evidence in person, and to adduce documentary and oral evidence in the defence. The person presenting the case in support of the charges shall be entitled to cross-examine the Government servant and the witnesses examined in his defence. If the Inquiring Authority declines to examine any witnesses or to admit any document in evidence on the ground that his evidence or such document is not relevant or material, it shall record its reasons in writing. Explanation: If in the opinion of the Inquiring Authority the proceedings of the enquiry establish any article of charge different from the original article of the charge it may record its findings on such article of charge: Provided that the findings on such article of charge shall not be recorded unless the Government servant has either admitted the facts on which such article of charge is based or has a reasonable opportunity of defending himself against such article of charges. (7) to (12)*** 6. (7) to (12)*** 6. At this stage, it may be noted here that the impugned orders have not been challenged on merit, pleading that the findings of Enquiry Officer are perverse or that the disciplinary authority did not take into consideration any relevant material, going in favour of the delinquent. Precisely, the impugned orders have been assailed on the grounds that-(i) the Enquiry Officer qua - the disciplinary authority did not furnish preliminary enquiry report to the delinquent; (ii) the delinquent was unjustifiably denied the opportunity to give evidence on his behalf; and (iii) the delinquent was not allowed to engage a defence assistant. 7. Referring to the judgment of Gauhati High Court, rendered in the case of T.S. Srivastava v. State of Assam AIR 1972 Gau. 2 , Sri Bhattacharyya, learned senior counsel for the writ Petitioner submitted that the provisions of Rule 9 of the 'Disciplinary Rules' are mandatory in nature and as such the disciplinary authority was obliged/duty bound to furnish the preliminary enquiry report as well as providing a defence assistant to the delinquent. To reinforce his submissions, the learned senior counsel also pressed into service the judgments of the Apex Court rendered in the case of State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan AIR 1961 1623; A.K. Roy v. Union of India (1982) 1 SCC 271 ; Chandrama Tewari v. Union of India AIR 1988 SC 117 and State of U.P. v. Shatrughan Lai (1998) 6 SCC 651 . 8. Elaborating his submissions, the learned senior counsel for the Petitioner submitted that preliminary enquiry report was the foundation for initiation of regular domestic enquiry and as such the disciplinary authority ought to have furnished a copy of the said report to enable the Petitioner to defend the charges properly. Shri Bhattacharyya also submitted that on the one hand the Enquiry Officer refused to give reasonable opportunity to the delinquent to examine his witnesses and at the same time, the Enquiry Officer drew adverse inference for not disproving the charge No. 4 by examining witnesses. Shri Bhattacharyya, learned senior counsel for the Petitioner vehemently contended that providing Defence Assistant is not only a mandatory requirement of the Rules but adopting such a recourse in the enquiry goes a long way to fulfil the constitutional obligations of the State, enshrined under articles 14 and 21 of the Constitution of India. Shri Bhattacharyya, learned senior counsel for the Petitioner vehemently contended that providing Defence Assistant is not only a mandatory requirement of the Rules but adopting such a recourse in the enquiry goes a long way to fulfil the constitutional obligations of the State, enshrined under articles 14 and 21 of the Constitution of India. According to the learned Counsel having not fulfilled the statutory obligations by the disciplinary authority, the impugned orders are non est in law and the writ Petitioner is entitled to be re-instated in service. 9. Per contra Shri Dey, learned standing counsel for the High Court submitted that the enquiry was fair enough and transparent and the writ Petitioner was provided more opportunities than laid down in the Disciplinary Rules, and as such, there is no scope to interfere with the impugned orders. Shri Dey, also submitted that principle of natural justice cannot be stretched beyond a certain point. The learned Counsel also contended that Rule 9(5) and 9(6) were substantially complied with inasmuch as all the documents and statements of witnesses relied upon by the Enquiry Officer and the disciplinary authority, were furnished to the delinquent. The learned Counsel for the Respondents submitted that even before initiation of formal domestic enquiry, a copy of the complaint was furnished to the Petitioner to obtain his comments and the enquiry proceeded only after going through the comments of the officer. Shri Dey further submitted that, in due course, final Enquiry Report was also furnished to the Petitioner and before inflicting penalty, another show-cause notice was issued and the High Court took the decision to remove the Petitioner after considering all the materials and replies of the writ Petitioner. The learned Counsel for the High Court also pressed into service the judgment of the hon'ble Supreme Court, rendered in the case of Union of India v. Tulsiram Patel AIR 1985 SC 1416 . 10. It is true that in the case of T.S. Sriuastava (supra) a Bench of three Judges of this Court has held that the procedures laid under Rule 9 of the Disciplinary Rules are mandatory and any violation of rules will vitiate the enquiry. 10. It is true that in the case of T.S. Sriuastava (supra) a Bench of three Judges of this Court has held that the procedures laid under Rule 9 of the Disciplinary Rules are mandatory and any violation of rules will vitiate the enquiry. The relevant observations of this Court are extracted below: By Sub-rule (9) "The Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge." Sub-rule (10) provide; the procedure for dealing with major penalties specified in Clauses (iv) to (vii) of Rule 7. Sub-rule (11) deals with minor penalties specified in Clauses (i) to (iii) of Rule 7. Even though it is minor penalty being withholding of increments, still under Sub-rule (11) read with Sub-rule (12)(a), the procedure prescribed under Rule 9 has to be followed and was indeed sought to be followed in this case. The procedure laid down under Rule 9 is mandatory procedure and any violation of the rule will vitiate the enquiry. These rules have been made in order to ensure security of the service and cannot be allowed to be by-passed or observed in a casual and mechanical way. These are not merely ceremonial adornment in print but are meant to be properly and positively observed. 11. In the aforesaid case the Inquiring Authority had taken a view that most of the charges could not be established, whereas, the Disciplinary Authority did not agree with the findings of the Enquiry Officer and took a contrary view that charges Nos. 1, 2, 3 and 4 were proved. Having regard to the materials on record the court held that under Rule 9(10)(a) the Disciplinary Authority is the incumbent to record reasons for its disagreement with the findings of the Enquiry Authority. However, the High Court found that the Disciplinary Authority's order was bereft of any reason. Besides this, the High Court noted that the delinquent was not given reasonable opportunity to meet certain charges, which were not part of the enquiry. In view of these gross violations of the provisions of Rule 9, amongst others, the punishment was interfered with. 12. In the case of Chintaman (supra) the hon'ble Supreme Court has held that a delinquent is entitled to all the documents and a reasonable opportunity to defend himself. Similar view has been taken in the case of Shatrughan Lal(supra). In view of these gross violations of the provisions of Rule 9, amongst others, the punishment was interfered with. 12. In the case of Chintaman (supra) the hon'ble Supreme Court has held that a delinquent is entitled to all the documents and a reasonable opportunity to defend himself. Similar view has been taken in the case of Shatrughan Lal(supra). In this case, the penalty of dismissal from service was interfered with by the High Court and the appeal of the State was dismissed basically on the ground that the statements of witnesses, recorded in the course of preliminary enquiry, were not furnished to the delinquent, though asked for. However, in the case before us, all the statements, relied upon by the Enquiry Officer and Disciplinary Authority, were furnished to the delinquent. 13. Before we embark upon the alleged non-compliance of mandatory provisions of Disciplinary Rules and the principles of natural justice, we would like to reiterate that the judiciary, which stands to guard and protect the life, liberty and the fundamental rights of citizens, guaranteed under the Constitution of India, cannot afford any arbitrary action by any State Authority, be it in service jurisprudence, criminal trial or allotment of Government largesse et al. In the case of Madan Mohan Choudhary (supra), the hon'ble Supreme Court has already held that the lurking suspicion in the minds of common people that the High Court Judges suffer from "split personality" cannot be accepted. We also reiterate that when a matter is taken up on judicial side, against a decision on the administrative side, no attempt is made to defend the administrative decision; rather, the scrutiny is more intense to rule out any arbitrary action or decision in its administrative side. We also restate the assurance of a free and fair enquiry and adherence to the principles of natural justice in the service jurisprudence. However, as has been held in various decisions of the hon'ble Supreme Court the theory of 'natural justice' cannot be put into a straight jacket formula. In fact, this doctrine has not been specifically laid down in any law. The concept of natural justice has been evolved by the judiciary to stem arbitrary actions by the State authorities. At the same time, the concept of "natural justice" also has certain limitations and its stretching beyond a certain limit, may sometime causes injustice to the process of law. The concept of natural justice has been evolved by the judiciary to stem arbitrary actions by the State authorities. At the same time, the concept of "natural justice" also has certain limitations and its stretching beyond a certain limit, may sometime causes injustice to the process of law. In the case of Bar Council of India v. High Court of Kerala, reported in (2004) 6 SCC 311 , it has been held that principles of natural justice, however, cannot be stretched too far and application of this doctrine may be subject to the provisions of a statute or statutory rule. Identically in the case of Muslim Aligarh University v. Mansur Ali Khan (2000) 7 SCC 529 , approving the 'useless formality' doctrine, it has been held that "if upon admitted or indisputable facts only one conclusion was possible, then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply". Supply of documents 14. Now we proceed to examine the grounds taken by the writ Petitioner, assailing the impugned orders. 14.1 Rule 9(2) of the Disciplinary Rules stipulates that, while delivering the charges, the Disciplinary Authority shall invariably furnish the Government servant a list of documents and witnesses by which the articles of charges are proposed to be sustained. In the writ petition, it was stated that statements of witnesses were not supplied to the documents. However, during the course of hearing the learned Counsel for the writ Petitioner corrected himself and admitted the fact that along with the charges and memo of allegations a list of witnesses and the documents were also furnished to the Petitioner. In this way, the dispute is only with regard to non-supply of the report of preliminary enquiry. 15. In the case of Chandrama Tewari (supra), the Apex Court has held that Article 311 of the Constitution requires that reasonable opportunity of defence must be afforded to a Government servant, before he is awarded a major punishment. With regard to the question of supply of documents to the delinquent to fulfil the principle of natural justice the hon'ble Supreme Court has held as below: 4... With regard to the question of supply of documents to the delinquent to fulfil the principle of natural justice the hon'ble Supreme Court has held as below: 4... If a document even though mentioned in the memo of charges is not relevant to the charges or if it is not referred to or relied upon by the enquiry officer or the punishing authority in holding the charges proved against the Government servants no exception can be taken to the validity of the proceedings or the order. If the document is not used against the party charged the ground of violation of principles of natural justice cannot successfully be raised. The violation of principles of natural justice arises only when a document, copy of which may not have been supplied to the party charged when demanded is used in recording finding of guilt against him.... 16. In this way it has been held by the Apex Court that if a document is not used against the party charged, the ground of violation of principles of natural justice cannot successfully be raised. Their lordships have further held that it is difficult to comprehend and justify the facts and circumstances which may lead to violation of principles of natural justice or denial of reasonable opportunity of defence and this question must be determined on the facts and circumstances of each case. 17. In the present case also the preliminary enquiry was held only to ascertain whether the allegations levelled in the complaint had any basis. In other words, the preliminary enquiry was held in the interest of the Petitioner/delinquent to ensure that he was not subjected to any disciplinary action on the basis of false and fabricated allegations. At no stage in the report, the Enquiry Officer has referred to the preliminary enquiry report. In other words, the Enquiry Officer was not influenced by the preliminary enquiry report that was held by another District Judge. Be that as it may, we have also noted earlier that the District Judge, who had held preliminary enquiry, did not record any finding on the allegations and evidence collected by him. His report was basically a summary of the statements of the witnesses. 18. The above apart, at the threshold of domestic enquiry, the delinquent himself wanted to inspect all the documents of the departmental proceeding and the inspection was permitted on 14.12.1999. His report was basically a summary of the statements of the witnesses. 18. The above apart, at the threshold of domestic enquiry, the delinquent himself wanted to inspect all the documents of the departmental proceeding and the inspection was permitted on 14.12.1999. There is no averment in the writ petition that the preliminary enquiry report was withheld and that it was not a part of the record furnished to the delinquent during his inspection. Hence, we are not persuaded to take a view that the enquiry was vitiated for non-furnishing of preliminary enquiry report. Non-examination of defence witnesses 19. It was argued that although the delinquent was interested to examine three persons to support his case, the Enquiry Officer abruptly closed the proceeding, without giving sufficient opportunity to the delinquent to examine two police officers. 20. Apparently, summons were issued to all the witnesses, to which the delinquent/Petitioner intended to examine on his behalf. The witnesses included the additional Public Prosecutor of the court, the S.I. of Police, who was investigating the criminal case and the Prosecuting Sub-Inspector, attached to the court of the delinquent. The record reveals that the delinquent examined himself as a witness and the Additional Public Prosecutor was also examined as DW-2. However, the police officers did not turn up, despite summons issued to them. Hence, it has to be seen whether the Petitioner suffered any prejudice for not adjourning the enquiry to secure the attendance of the police officers. 21. From the show cause reply of the Petitioner it is gathered that the police officers did not have any direct knowledge of the incident, S.I. Sri Suren Das was the investigating officer of GR Case No. 45 of 1999 (the case lodged by the Petitioner) and as such he would have at best testified as to when the case was registered and also about the remand orders. The other police officer ('PSI') had also limited role in the incident. According to the delinquent the complainant obtained permission to meet the Petitioner through the PSI. To put it differently, there is no averment in the show cause reply that PSI was throughout present during the altercation/deliberation in between the Petitioner and the complainant. The other police officer ('PSI') had also limited role in the incident. According to the delinquent the complainant obtained permission to meet the Petitioner through the PSI. To put it differently, there is no averment in the show cause reply that PSI was throughout present during the altercation/deliberation in between the Petitioner and the complainant. It is true that while discussing the 2nd part of charge No. 4, regarding putting pressure on the complainant to withdraw the complaint, the Enquiry Officer has observed that the delinquent Sri P.K. Sarmah failed to prove his plea that the complainant himself entered into his chamber to seek apology by not examining the PSI in his defence. In our considered opinion, the examination of PSI would not have improved the Petitioner's case, since there is no specific pleading that the deliberation had taken in presence of the PSI. Even, for a moment, it is held that the charge No. 4 could not be established, it would have no bearing on the result of the writ petition, inasmuch as, the remaining charges have been successfully proved and there is no challenge to the findings of those charges. Defence assistant 22. Shri Bhattacharyya, learned senior counsel for the Petitioner submitted that Rule 9(5) of the Disciplinary Rules are mandatory in the light of the judgment of this Court, rendered in the case of T.S. Srivastava (supra). According to the learned senior counsel, within the sweep of the aforesaid judgment, refusal to provide a Defence Assistant or a lawyer to the delinquent to prove his innocence would vitiate the proceeding. In this regard, the learned senior counsel also relied upon another judgment of the hon'ble Supreme Court rendered in the case of C.L. Subramaniam v. The Collector of Customs, Cochin AIR 1972 SC 2178 . 23. In our considered opinion, the facts and circumstances of C.L. Subramaniam (supra) do not match with the facts and circumstances of the present case. In the cited authority the delinquent had initially prayed for allowing him to take the assistance of an officer from the department. But the prayer remained unattended and eventually no defence assistant was allowed. Simultaneously, the delinquent also prayed for allowing him to engage a lawyer on the ground that the Presenting Officer was a trained police prosecutor and as such it became necessary for him to be defended by a lawyer. But the prayer remained unattended and eventually no defence assistant was allowed. Simultaneously, the delinquent also prayed for allowing him to engage a lawyer on the ground that the Presenting Officer was a trained police prosecutor and as such it became necessary for him to be defended by a lawyer. However, this prayer was also turned down. In this way, the delinquent was refused any kind of defence assistance. Under such circumstances, the Apex Court interfered with the dismissal of the officer with the following observations: 13. The grievance of the Appellant was that he was pitted against a trained prosecutor and not that Sivaraman was a legal practitioner. The Disciplinary Authority did not consider that grievance. It brushed aside the request of the Appellant on the ground that Sivaraman was not a legal practitioner, a consideration which was not relied on by the Appellant. The grounds urged by the Appellant in support of his request for permission to engage a legal practitioner were by no means irrelevant. The fact that the case against the Appellant was being handled by a trained prosecutor was a good ground for allowing the Appellant to engage a legal practitioner to defend him lest the scales should be weighed against him. The Disciplinary Authority completely ignored that circumstance. Therefore, that authority clearly failed to exercise the power conferred on it under the rule. It is not unlikely that the Disciplinary Authority refused to permit the Appellant to engage a legal practitioner in the circumstances mentioned earlier had caused serous prejudice to the Appellant and had amounted to a denial of reasonable opportunity to defend himself. 24. In the case before us, no prayer was made by the writ Petitioner to take assistance of any Government servant/officer. His pointed request was to allow him to engage a layer. Rule 9(5) does not require critical analysis. In our opinion, it is mandatory to the extent a delinquent requests the Disciplinary Authority to allow him to take assistance of any other Government servant and if any such permission is sought for the authority is obliged to accept the prayer. However, the 2nd part of Rule 9(5) gives discretion to the Disciplinary Authority to accede to the prayer of a delinquent to engage a legal practitioner. This view can be ascertained from various authorities that are being discussed in this judgment later. 25. However, the 2nd part of Rule 9(5) gives discretion to the Disciplinary Authority to accede to the prayer of a delinquent to engage a legal practitioner. This view can be ascertained from various authorities that are being discussed in this judgment later. 25. Apparently and admittedly the department also did not engage any lawyer to present the case before the Enquiry Officer. The law in this regard is well settled. We are also of the opinion that since the Petitioner himself was a judicial officer, he was familiar with the niceties of cross-examination of witnesses and giving evidence. The allegations and charges did not involve any technical issue so as to take a view that the Petitioner was prejudiced for not being allowed to engage a counsel. The observations of the hon'ble Supreme Court, given in the case of C.L. Subramaniam (supra), and relied upon by the learned Counsel for the Petitioner that "when a man is charged with the breach of a rule entailing serious consequences, he is not likely to be in a position to present his case as best as it should be" has to be understood in the background of the allegations, charges and the status of the delinquent. Be that as it may, it is not a universal rule in the service jurisprudence that it is mandatory for the Disciplinary Authority to accept the prayer of delinquents to be provided with legal assistance and, in fact, the Disciplinary Rules has not mandated so. This view can be gathered from the judgment of Apex Court in the case of D.G., Railway Protection Force v. K. Raghuram Babu (2008) 4 SCC 406 . The relevant observations of the Apex Court can profitably be quoted below: 11. Following the above decision it has to be held that there is no vested or absolute right in any charge-sheeted employee to representation either through a counsel or through any other person unless the statute or rules/standing orders provide for such a right. Moreover, the right to representation through someone, even if granted by rules, can be granted as a restricted or controlled right. Refusal to grant representation through an agent does not violate the principles of natural justice. 26. Moreover, the right to representation through someone, even if granted by rules, can be granted as a restricted or controlled right. Refusal to grant representation through an agent does not violate the principles of natural justice. 26. In the case of State of Rajasthan v. S.K. Dutta Sharma 1993 Supp (4) SCC 61 the delinquent had also made a prayer for allowing him to engage a lawyer on the ground that the departmental nominee was a person in the rank of Deputy superintendent of Police and he had also worked as Prosecuting Inspector for a number of years. However, the prayer was turned down by the Disciplinary Authority as well as by a Single Judge of the High Court. But the Division Bench of the High Court allowed the appeal and set aside the penalty of removal from service. Hence, the State filed the appeal before the hon'ble Supreme Court. The Apex Court restored the removal order holding that the Petitioner (a State Civil Service Officer) was found to a person well versed in law as well as in legal decisions and he had effectively cross-examined the witnesses. Accordingly, it was held that the delinquent did no suffer any prejudice on account of refusal on the part of the authority to engage a legal practitioner. 27. In the case of Indian Institute of Technology v. Union of India 1991 Supp (2) SCC 12, the delinquent was also declined to engage the service of a lawyer and this stand was upheld by the Apex Court on the ground that since the Presenting Officer was not a legal practitioner the delinquent was not entitled to engage a lawyer. 28. In the case of Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni (1983) 1 SCC 124 , the hon'ble Supreme Court was called upon to answer whether denial of any opportunity to engage a legal practitioner in a domestic enquiry amounts to violation of principle of natural justice. Keeping the larger issue open, their lordships have held that if in the domestic tribunal the delinquent officer is pitted against a legally trained mind the delinquent can reasonably make a request to allow him to be defended through a legal practitioner and rejection of such a prayer would amount to an unfair trial. Keeping the larger issue open, their lordships have held that if in the domestic tribunal the delinquent officer is pitted against a legally trained mind the delinquent can reasonably make a request to allow him to be defended through a legal practitioner and rejection of such a prayer would amount to an unfair trial. However, in the case before us, the department was not represented by any lawyer and at the same time, the delinquent/Petitioner was himself a judicial officer with sufficient years of experience in the Bench. Be that as it may, we feel it necessary to re-produce the observations of the Apex Court made in the aforesaid judgment as to why legal practitioner are normally not allowed to take part in the domestic enquiry and the observations are as below: 8. The time honoured and traditional approach is that a domestic enquiry is a managerial function and that it is best left to management without the intervention of persons belonging to legal profession. This approach was grounded on the view that a domestic tribunal holding an enquiry without being unduly influenced by strict rules of evidence and the procedural Juggernaut should hear the delinquent employee in person and in such an informal enquiry, the delinquent officer would be able to defend himself. The essential assumption underlying this belief is questionable but it held the field for some time and there are decisions of this Court in Brooke Bond India (P.) Ltd. v. Subba Raman (S.) and Dunlop Rubber Co. v. Workmen in which it has been held that in a disciplinary enquiry before a domestic tribunal a person accused of misconduct has to conduct his own case and, therefore, as a corollary it cannot be said that in such an enquiry against a workman natural justice demands that he ought to be represented by a representative of his union much less a member of the legal profession.... 29. All these apart, the prayer for engaging a counsel was made at a belated stage. From the facts narrated in this judgment it is clear that the prayer for this purpose was made before the Enquiry Officer for the first time on 10.9.2000, the day when five witnesses were present, examined and cross-examined by the delinquent. The prayer was turned down on the ground that the Enquiry Officer did not possess any such authority. From the facts narrated in this judgment it is clear that the prayer for this purpose was made before the Enquiry Officer for the first time on 10.9.2000, the day when five witnesses were present, examined and cross-examined by the delinquent. The prayer was turned down on the ground that the Enquiry Officer did not possess any such authority. Truly speaking Rule 9(5) of the Disciplinary Rules has vested this power only to the Disciplinary Authority and not to the Enquiry Officer. Only thereafter the Petitioner reiterated his prayer before the High Court and the prayer was rejected on 26.9.2000. The record reveals that the prayer was examined by the High Court and rejected on the ground that it was not a case in which permission to engage a counsel can be given. In the light of the legal principles laid down by this Court and other High Courts as well as by the hon'ble Supreme Court we find no hesitation to hold that there was neither any miscarriage of justice nor the Petitioner had suffered any prejudice for not being allowed to engage a lawyer. 30. Learned senior counsel for the Petitioner also heavily relied upon the following observations of the hon'ble American Supreme Court given in the case of Ozis Powel v. State of Alabama, referred in the judgment of A.K. Roy v. Union of India (1982) 1 SCC 271 . Paragraph 89 of the aforesaid judgment is quoted below: 89... Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defence, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.... 31. The aforesaid observations of American Supreme Court were considered by our Apex Court in a case of preventive detention. In our considered opinion, a case of disciplinary proceeding cannot be weighed with the same scale that is applied in a case of preventive detention. It is the settled position of law that disciplinary action can be taken on the basis of preponderance of probability doctrine and not on the doctrine of proof beyond reasonable doubt. In the case of Lalit Popli v. Canara Bank (2003) 3 SCC 583 , it has been held that it is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings, the primary question is whether the employee is guilty of such conduct as would merit any action against him, whereas in criminal proceedings the question is whether the offences, registered against him, are established beyond doubt and if established what sentence should be imposed upon him. Their lordships have further held that the standard of, proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different and in the case of disciplinary enquiry the technical rules of evidence have no application. It has been reiterated that the doctrine of "proof beyond doubt" has no application and existence of some material on record would be enough to arrive at the conclusion whether or not the delinquent has committed misconduct. This view has been consistently taken in various other decisions as well. 32. It has been reiterated that the doctrine of "proof beyond doubt" has no application and existence of some material on record would be enough to arrive at the conclusion whether or not the delinquent has committed misconduct. This view has been consistently taken in various other decisions as well. 32. In the celebrated case of Tulsiram Patel (supra), the hon'ble Supreme Court has held that the maxim of dum bene se gesserit ("during good conduct"), and quamdiu se bene gesserit ("as long as he shall behave himself well") are applicable were civil servants hold their appointments at the pleasure of the President or Governor, as the case may be. Their Lordships have further held that the protections guaranteed to civil servants under Article 311 of the Constitution are subject to the "pleasure doctrine" prescribed under Article 310. 33. For the reasons assigned herein above, we hold that the impugned orders do not suffer from any infirmity or illegality, more particularly, on the grounds raised by the writ Petitioner. Consequently, the writ petition stands dismissed. However, under the facts and circumstances of the case, we do not propose to impose any cost. Petition dismissed.